[Federal Register Volume 81, Number 35 (Tuesday, February 23, 2016)]
[Notices]
[Pages 8976-8978]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-03674]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

[Docket No. USCG-2013-0915]
RIN 1625-ZA31


Carriage of Conditionally Permitted Shale Gas Extraction Waste 
Water in Bulk

AGENCY: Coast Guard, DHS.

ACTION: Notice of withdrawal.

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SUMMARY: The Coast Guard announces that it has withdrawn the October 
30, 2013, proposed policy letter concerning the carriage of shale gas 
extraction waste water (SGEWW) in bulk via barge. The policy letter 
proposed a new standardized process and specified conditions under 
which a barge owner could request and be granted a Certificate of 
Inspection endorsement or letter allowing the barge to transport SGEWW 
in bulk. That proposed policy is withdrawn and no new policy is 
proposed at this time. Barge owners may

[[Page 8977]]

continue to request case-by-case approval to transport SGEWW under 
current regulations by providing recent detailed chemical composition, 
environmental analyses, and other information for each individual tank 
barge load. The Coast Guard will consider instituting a standardized 
process for transporting SGEWW in bulk after it has assessed whether 
current regulations are inadequate to handle requests for transport of 
SGEWW in bulk and environmental impacts that may be associated with 
SGEWW transport by barge.

DATES: The proposed policy letter was withdrawn February 23, 2016.

FOR FURTHER INFORMATION CONTACT: If you have questions on this notice, 
call or email Dr. Cynthia A. Znati, Office of Design and Engineering 
Standards, Hazardous Materials Division, U.S. Coast Guard; telephone 
202-372-1412, email [email protected].

SUPPLEMENTARY INFORMATION:

General Discussion

    This notice is issued under the authority of 5 U.S.C. 552(a). On 
October 30, 2013, the Coast Guard published a proposed policy letter 
and requested comments on a new standardized process including the 
specific carriage conditions for the transport of shale gas extraction 
waste water (SGEWW) in bulk via barge (78 FR 64905). The proposed 
policy would have set out a process for performing chemical analyses of 
each load of SGEWW, a radiation survey of each barge before any 
personnel entered the barge and before changing from SGEWW to another 
cargo, and tank venting to prevent accumulation of radon. It also would 
have described limits on radioactivity concentration and consignment 
activity (effectively, limits on emission of radiation) for SGEWW 
cargoes.
    We proposed the policy letter in response to the rapid development 
in recent years of horizontal drilling and hydraulic fracturing 
(commonly known as ``fracking'') that produce large volumes of shale 
gas and oil in the northern Appalachian Mountains. This fracking 
produces large amounts of SGEWW, some of which may contain hazardous 
materials including radioactive isotopes. Transport of SGEWW by vessel 
falls under the Coast Guard's existing regulations for bulk liquid 
hazardous material and requires specific, case-by-case permission. We 
explain these regulations in more detail, below.
    In 2011 a tank barge owner asked the Coast Guard for permission to 
transport SGEWW by tank barge. Anticipating that this would be the 
first of many requests, the Coast Guard proposed a standardized 
national policy to replace the case-by-case process which might have 
led to delays in processing those requests. (We have not received 
significant interest from industry, however, which is one of the 
reasons we are withdrawing the proposed policy.) The notice announcing 
the policy letter provided a 30-day public comment period. We received 
70,115 comments in response to the notice and proposed policy letter. 
These comments are generally described below, with our responses, in 
the section titled ``Comments Received.''
    We are now withdrawing the proposed policy. This notice officially 
withdrawing the proposed policy letter is intended to resolve any 
questions about the status of the proposed policy letter or the 
existing regulatory process. No new policy is proposed at this time. 
The Coast Guard will continue to consider requests for permission to 
transport SGEWW in bulk under our existing regulatory authority 
described in the next section. We will use experience with individual 
approvals of SGEWW barge transport to inform any future rulemaking or 
guidance on this subject.

Carriage of SGEWW Under Existing Regulations

    The Coast Guard regulates the carriage of bulk liquid hazardous 
material by listing, in the Code of Federal Regulations (CFR), 
permitted cargoes and the safety requirements that vessel owners must 
meet in order to carry those cargoes; see, for example, the list at 
Table 1 in 46 CFR part 153. Unlisted cargoes may not be carried without 
specific permission from the Coast Guard. The regulations provide that 
vessel owners may request and receive the necessary permission by 
providing information about each cargo so that the Coast Guard can 
prescribe necessary safety measures; see, for example, the requirements 
in 46 CFR 153.900. SGEWW is an unlisted cargo. In order to carry SGEWW 
on a tank barge, the vessel owner must request permission from the 
Coast Guard, provide the information about each individual cargo that 
the Coast Guard needs in order to analyze potential impacts and develop 
carriage requirements, and then comply with the requirements specified. 
Although the proposed policy letter would have standardized that 
information and request process for SGEWW, withdrawal of the policy 
letter does not change the Coast Guard's authority to consider 
approving unlisted cargoes on a case-by-case basis under the existing 
regulations.

Comments Received

    Form letters. Of the 70,115 comments the Coast Guard received, 
68,747 comments were brief statements in similar format and wording 
that expressed disapproval of the proposed policy letter and expressed 
opposition to hydraulic fracturing. Commenters stated concerns that a 
spill or accident would release toxic chemicals into our rivers and 
could put our drinking water at risk. The Coast Guard notes the general 
concerns expressed in these comments, but also notes these comments 
expressed the writers' general opposition to the proposed policy letter 
without offering input regarding the substance of transporting SGEWW in 
bulk as described in the policy. The Coast Guard has no legal authority 
to permit, prohibit, or place conditions on the practice of fracking 
itself. The Coast Guard's only authority in this matter is the 
authority to evaluate the safety of SGEWW as a cargo and set conditions 
on its carriage by vessel.
    Other comments. We also received approximately 1,368 comments that 
did not employ a form template and are discussed here and below. One 
submission \1\ was signed by representatives of 140 organizations and 
other entities from various States. This (and comments submitted by 
others) stated that the Coast Guard should expect wide interest in 
SGEWW barging and that a rulemaking, rather than a policy letter, is 
the appropriate approach to this issue. Commenters indicated a 
rulemaking would more clearly prescribe rules, how to achieve 
compliance, a consistent and transparent implementation process, an 
effective means of enforcement, and improved opportunities for public 
participation. The Coast Guard does not agree that a rulemaking would 
have provided more transparency or opportunities for public 
participation than were provided in the public comment period on the 
proposed policy letter. Detailed information on how to achieve 
compliance is often better suited to guidance documents such as the 
withdrawn policy letter. Effective enforcement is already provided via 
existing regulations prohibiting the carriage of unlisted cargoes 
without specific permission from the Coast Guard.
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    \1\ Docketed as USCG-2013-0915-0932.
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    The comment also noted that the proposed chemical analysis protocol 
allows shippers to propose alternatives but those alternatives would 
not be

[[Page 8978]]

transparent to the general public. Many Coast Guard regulations provide 
the opportunity to propose alternatives or equivalent methods of 
compliance for the Coast Guard's approval; for examples see 46 CFR 
62.15-1, 114.540, and 110.20-1, among others. Allowing alternatives 
provides the flexibility to use new technology, including improved 
safety and pollution prevention equipment. In addition, the Coast Guard 
consistently explains in its policy letters and other guidance that it 
will consider alternate methods of compliance with the binding 
statutory and regulatory requirements. Coast Guard determinations on 
alternate or equivalent methods of compliance generally are not 
publicly available because they do not create rights or obligations for 
anyone other than the requester, and they could contain proprietary 
information about the alternative requested or approved.
    The same group of 140 organizations and entities submitted another 
comment,\2\ stating that the proposed policy letter would result in 
uncertain or unknown effects or risks to various aspects of the 
environment and public health. The commenters also thought the proposed 
policy would result in negative impacts to areas that have unique 
historical, cultural, and ecological characteristics. The Coast Guard 
notes the concerns raised in these comments and will carefully consider 
the environmental impacts of each request to ship SGEWW by barge on a 
case-by-case basis under existing regulations.
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    \2\ Docketed as USCG-2013-0915-1036.
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    Another submission \3\ was made on behalf of 46 organizations in 
Ohio, Pennsylvania, Michigan, Kentucky, Illinois, New York, and West 
Virginia. This comment (and comments submitted by others) has similarly 
stated that the Coast Guard should require chemical analyses of SGEWW 
barge loads to be submitted to the agency, not merely held by industry. 
Under the proposed policy, vessel owners would have retained records of 
the chemical analyses and surveys, but the Coast Guard would have 
examined those records prior to allowing workers or Coast Guard 
personnel to enter a barge's tank. Also, by cumulating data from the 
chemical analyses records we could determine whether hazardous 
materials had built up within the barge's tank.
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    \3\ Docketed as USCG-2013-0915-0855.
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    Various commenters, including some commenters employing a form 
template, also said that the Coast Guard's use of a categorical 
exclusion to preclude more thorough environmental analysis of the 
proposed policy letter's impact was improper under the National 
Environmental Policy Act of 1969 \4\ (NEPA), and that more 
environmental analysis of the effects of the proposed policy letter is 
necessary to assess the likelihood of a spill. The Coast Guard intends 
to evaluate the environmental impacts under NEPA for each request to 
ship SGEWW by barge, on a case-by-case basis under existing 
regulations. This information may be used, as appropriate, to inform 
any future rulemaking or guidance on this issue.
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    \4\ Codified as 42 U.S.C. 4321 et seq.
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    Finally, the commenters believe the Coast Guard gave inadequate 
consideration to worker safety hazards and mitigation measures. As 
described above, however, the Coast Guard would have used the analyses 
and surveys described in the proposed policy to evaluate the safety of 
the barge tanks before allowing personnel to enter. In addition, once 
the chemical components of each individual load of SGEWW were 
identified, the Coast Guard could have used the regulatory process for 
unlisted cargoes to prescribe other protocols to mitigate safety risks 
to workers.
    The Coast Guard also received many comments from individuals 
raising additional varied concerns. Some comments requested an 
extension of the public comment period, which is unnecessary in light 
of this withdrawal. Other comments stated that the proposed policy 
letter unfairly transfers industry costs and risks to society in 
general; we disagree that Coast Guard decisions on safe transport of 
SGEWW in bulk by water necessarily transfer costs and risks away from 
industry, especially as the proposed policy does not affect the 
creation or disposal of SGEWW, or its transport by truck or rail. We 
also received comments saying that the Coast Guard provided inadequate 
information about SGEWW's ultimate destination and the methods for its 
ultimate disposal; the ultimate destination and disposal of SGEWW was 
outside the scope of our proposed policy on safely transporting SGEWW. 
Also, commenters thought that the Coast Guard provided inadequate 
information about cleanup plans in the event of an SGEWW spill, but 
environmental liability and cleanup requirements were outside the scope 
and purpose of the proposed policy. The Coast Guard intends to evaluate 
requests to ship SGEWW by barge on a case-by-case basis under existing 
regulations. Any other statutes or regulations found to be applicable 
under this case-by-case review would be included when developing 
carriage requirements.
    Of the comments received, 21 comments thought the proposed policy 
letter should be finalized. These commenters suggested that the risk of 
transporting SGEWW by vessel was lower relative to transport by rail or 
truck, or that SGEWW is less hazardous than other vessel-borne cargoes 
such as oil and gasoline. The Coast Guard notes these comments in 
support of the proposed policy letter.
    The Coast Guard appreciates all the comments received. It will 
continue to study this issue in light of the comments received before 
taking any further action on this matter. In particular, the Coast 
Guard will assess whether current regulations are adequate to handle 
requests for transport of SGEWW in bulk and environmental impacts that 
may be associated with SGEWW transport by barge.

    Dated: February 17, 2016.
J.G. Lantz,
Director of Commercial Regulations and Standards, U.S. Coast Guard.
[FR Doc. 2016-03674 Filed 2-22-16; 8:45 am]
BILLING CODE 9110-04-P